Appeal from an order of the Civil Court of the City of New York, Queens County (Cynthia Kern, J.), entered July 12, 2006, deemed from a judgment entered February 28, 2007 (CPLR 5520 [c]). The judgment, entered pursuant to the July 12, 2006 order granting plaintiff's cross motion for summary judgment and denying defendant's motion for summary judgment, awarded plaintiff the principal sum of $750.41.

Judgment reversed without costs, so much of the order entered July 12, 2006 as granted plaintiff's cross motion for summary judgment vacated, and plaintiff's cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff's cross motion for summary judgment and denied the motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC)
for summary judgment. The instant appeal by defendant ensued. A judgment was subsequently entered.

On appeal, defendant asserts that the affidavit by plaintiff's officer, submitted in support of plaintiff's motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff's moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff's officer was insufficient to establish that he possessed personal knowledge of plaintiff's practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff's moving papers. Accordingly, plaintiff failed to make a prima facie [*2]showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff's motion for summary judgment should have been denied.

With respect to defendant's cross motion for summary judgment, we are of the opinion that the court below correctly denied same. Defendant's assertion, that it was entitled to summary judgment because plaintiff's assignor was not a qualified person since he failed to provide defendant with a household affidavit or written proof of lack of insurance, lacks merit. Plaintiff's assignor's status as a qualified person is not dependent upon defendant's receipt of said documents (see Insurance Law § 5202 [b]). As a result, defendant's motion for summary judgment dismissing the complaint was properly denied since defendant failed to make a prima facie showing of its entitlement to such relief (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: July 10, 2008